Tatiana Investments Company Ltd v Liquor Control Board [2006] WSSC 56 (17 November 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TATIANA INVESTMENTS COMPANY LIMITED
a private company as Operators and Manager of the "RSA CLUB", Apia.
Applicant

AND:

LIQUOR CONTROL BOARD
a statutory body established pursuant to the Liquor Act 1971
Respondent

Counsel: T R S Toailoa for applicant
D M Clarke for respondent

Hearing: 20 October 2006
Judgment: 17 November 2006

JUDGMENT OF SAPOLU CJ

Background

Briefly, the applicant in these proceedings is a private company which has been occupying the RSA Club’s premises in Apia since 1991 pursuant to a lease agreement with the Returned Servicemen Association. The RSA Club’s premises are a licensed premises which sells liquor to its members and to the public under a licence granted by the Liquor Control Board which is the respondent in these proceedings.

The applicant company claims that by letter dated 1 August 2006 the respondent Board cancelled its licence to sell liquor without first giving it the opportunity to be heard thus violating the principles of natural justice. The applicant also claims that the cancellation of its licence to sell liquor by the respondent Board was without reasonable cause and therefore ultra vires the provisions of the Liquor Act 1971, in particular s.8(2) thereof.

After the letter of 1 August 2006 from the Board, the applicant wrote to the Board seeking reconsideration by the Board of its decision to cancel the applicant’s licence. This led to a meeting on 22 August between the applicant and the Board where the managing director of the applicant company was given the opportunity to address the Board on the issue which was of concern to it, namely, the cancellation of its licence. Following this meeting, the Board by letter of the same date informed the applicant that the cancellation of its licence to sell liquor will continue for a specified period of time until the Board will again review reinstatement of its licence. Further communications, oral and in writing, between the applicant and the Board followed.

On 6 October 2006 the applicant filed a motion for judicial review seeking the remedies of certiorari and an interim injunction against the Board and its decision. On 11 October the Board filed a notice of opposition to the applicant’s motion. A statement of claim was also filed by the applicant seeking damages for alleged violation of the principles of natural justice and for the alleged ultra vires decision to cancel the applicant’s licence. Subsequently, the applicant’s licence was reinstated and the applicant filed an amended motion for judicial review which in effect abandoned the claim for an interim injunction but retaining the claim for an order for certiorari.

The issues

The issues which remain for determination, as they were presented in the submissions by both counsel, may be stated in the form of these questions:

(a) Is the respondent the Liquor Control Board, an entity that is capable of being sued?

(b) Are the members of the Liquor Control Board personally liable for the actions of the Board?
(c) Is the Liquor Control Board part of the Government?
(d) Is the Liquor Control Board amenable to judicial review; if so, should an order for certiorari be issued?

I will now discuss each of these questions in turn.

Is the Liquor Control Board an entity that is capable of being sued?

As the starting point of my inquiry into the question of whether the respondent, the Liquor Control Board, is an entity that is capable of being sued, I have decided to refer first to the relevant legal principles. In the case of MacLean v Liquor Licence Board of Ontario (1975) 9 O.R. (2d) 597, Lerner J in delivering the decision of the Ontario Divisional Court cited with approval the six categories of bodies created by statute which were identified in Westlake et al v The Queen in right of Province of Ontario [1971] 3 O.R. 533, affirmed [1972] 2 O.R. 605 (C.A), affirmed [1973] S.C.R vii and the respective liabilities of those different statutory bodies to be sued. At pp.606-607 of MacLean, Lerner J listed these six different categories of bodies created by statute and their respective liabilities to be sued as follows:

1. Bodies corporate not expressly declared to be suable.
2. Those bodies expressly declared to be suable.
3. Bodies corporate expressly declared not to be suable.
4. Non-corporate bodies expressly liable to suit by the terms of the statute creating them.
5. Non-corporate bodies, not by the terms of the statute incorporating them, expressly liable to suit but which are by necessary implication liable to be sued in an action for damages.
6. Non-corporate bodies which are neither by the terms of the statutes incorporating them nor by necessary implication liable to be sued in an action for damages. They are legal entities, in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari, mandamus and prohibition.
   

The Liquor Licence Board in MacLean was held to come within category no.6 in that it was a non-corporate body not liable to be sued in an action for damages but was amenable to judicial review. As it will appear later in this judgment, I have decided that the respondent in this case, the Liquor Control Board, is a non-corporate body that is not capable of being sued but its actions are amenable to judicial review.

The special question of whether an incorporated or unincorporated Crown agent can sue or be sued is dealt with in Liability of the Crown (2000) 3rd ed by Hogg and Monahan at pp.340-349. In relation to an incorporated Crown agent, the learned authors say at p.340:

"[If] the Crown agent is incorporated, the general rule is that it is an entity that can sue or be sued in its own name. Capacity to sue or be sued is one of the attributes of legal personality that is possessed by a corporation. The general rule may be reinforced by an express declaration in the instituting statute that the corporation is suable, but an express declaration is not necessary. The general rule may be abrogated for a particular corporation by a denial in the constituting statute that the corporation is suable; in that case, of course, the corporation cannot be sued".

The learned authors then go on to deal with the question of whether an unincorporated Crown agent can sue or be sued by saying at pp.340-341:

"If the Crown agent is unincorporated, the general rule is that it lacks a distinct legal personality and is for that reason not an entity that can sue or be sued in its own name. If the constituting statute does not contain an express provision making the entity suable, the statute may still be interpreted as implicitly making the entity suable. If the constituting statute endows the entity with capacity to hold property or to enter into contracts, then the entity will be held to be suable by necessary implication. For example, in Northern Pipeline Agency v Perehince [1983] 2 SCR 513, the Supreme Court of Canada had to decide whether a suit could be brought against the Northern Pipeline Agency, an unincorporated body that was an agent of the federal Crown. The Court held that because the Agency had the statutory power to enter into contracts of employment in its own name, the Agency was by implication liable to be sued for wrongful dismissal in its own name.

If on the other hand, the constituting statute confers upon the unincorporated body only powers of regulation, administration or adjudication, then the general rule that the body cannot be sued will apply. For example, the Ontario Labour Relations Board and the Ontario Securities Commission, both unincorporated bodies, have been held to be immense from actions for damages. Hollinger Bus Lines v Ontario Labour Relations Board [1952] O.R. 366 (C.A.) dismissing an action for damages against the Ontario Labour relations Board; Westlake v The Queen in right of Province of Ontario [1971] 3 O.R. 533 (HC) dismissing an action for damages against the Ontario Securities Commission. However, the nature of each tribunal’s functions made the tribunal amenable to judicial review by way of the prerogative writs or other administrative law remedies, to that extent, the constituting statute conferred legal personality by implication on the unincorporated body. But the absence of any indication that the body was to hold property, enter into contracts or engage in commercial activity left the body otherwise free from lawsuits."

In footnote 43 to the passage just cited, the learned authors point out that neither the Ontario Labour Relations Board nor the Ontario Securities Commission was an agent of the Crown but that is irrelevant to the point under discussion.

It is to be noted here that the six different categories of incorporated and unincorporated bodies created by statute and their respective liabilities to be sued which are cited with approval in MacLean v Liquor Licensing Board of Ontario (1975) 9 O.R. (2d) 597 at 606-607, are of general application. They are not restricted to incorporated or unincorporated statutory entities which are Crown or non-Crown agents. Even though the passages cited from Liability of the Crown (2000) 3rd ed by Hogg and Monahan at pp.340-341 contain specific references to an incorporated or unincorporated entity created by statute which is a Crown agent, I am of the view that what is said in those passages is also applicable to an entity created by statute which is not a Crown agent. The references in one of those passages to Hollinger Bus Lines v Ontario Labour Relations Board [1952] O.R. 366 (C.A.) and Westlake v The Queen in right of Province of Ontario (1971) 3 O.R. 533 (HC) which were concerned respectively with the Ontario Labour Relations Board and the Ontario Securities Commission both of which were not Crown agents, clearly suggest that the passages cited from Liability of the Crown (supra) are also applicable to incorporated or unincorporated entities created by statute which are not Crown agents. It follows that for the purpose of this part of my judgment it is not material whether the Liquor Control Board is an agent or not an agent of government.

To show that the Liquor Control Board is a non-corporate or unincorporated statutory entity which cannot be sued in an action for damages, I will turn to the provisions of the Liquor Act 1971 which establish the Board and provide for its powers. Section 3 of the Act which establishes the Board provides:

"(1) There is hereby established for the purposes of this Act a Board to be known as the Liquor Control Board which shall consist of the Minister, who shall be the Chairman of the Board, the Commissioner, the Collector, the Director, the Financial Secretary or his nominee and three persons to be chosen by the Minister from the general public.

(2) Four members of the Board present at a meeting shall from a "quorum.

(3) The Board shall have power to:

(a) Grant or refuse any application for a licence under section 5A or B of this Act;

(b) Hold such enquiries as it thinks fit and advise the Government on matters relating to the control of manufacture, sale and consumption of liquor in Western Samoa;

(c) Prescribe fees to be paid for licences and permits under this Act;

(d) Fix the price payable to licensees for liquor sold by them;

(e) Prescribe opening and closing hours for the sale of liquor by licensees;

(f) Do such things as shall be prescribed by regulations under this Act;

(ff) Prescribe opening and closing hours for licensed premises, including the prescription or different hours for different type of licensed premises.

(4) There shall be a Secretary of the Board who shall be appointed by the Public Service Commission and who may hold any other office in the Public Service which the Public Service Commission shall consider to be not incompatible there with.

Section 8 then gives the Board the power to grant licences on terms or conditions to the owners or occupiers of suitable premises to purchase liquor and resell it in such premises. It also empowers the Board to cancel or vary such licence for reasonable cause. Section 5A then gives power to the Board to grant a liquor importer’s licence on terms and conditions to the holder of a licence under s.8 and to vary or cancel such liquor licence for reasonable cause.

Having regard to the provisions of ss.3, 5A and 8 which are the only relevant provisions of the Act, I am of the view that the Act has not endowed the Liquor Control Board with the attributes of the legal personality possessed by a corporation. In other words the Act has not established the Board as a corporate or incorporated statutory body. What the Act has done is to create the Board as a non-corporate or unincorporated statutory body. Counsel for the respondent Board very helpfully drew the attention of the Court to the Samoa Qualifications Authority established under the Samoa Qualifications Authority Act 2006, the National Kidney Foundation Act 2005, and the Electric Power Corporation Act 1980 as examples of corporate bodies created by their enabling statutes. That is in contrast to the Liquor Control Board which is just a statutory entity without the attributes of a corporate body.

Having determined that the Liquor Control Board is a non-corporate or unincorporated statutory body, the next question is whether it can sue or be sued. The answer to this question depends on the provisions of the Act. There is no provision in the Act which expressly provides that the Board can sue or be sued. It is also not possible to conclude from any express provision of the Act that the Board is by necessary implication capable of being sued in an action for damages. If, for example, the Act had provided that the Board has power to hold property or to enter into contracts, it may have been arguable that the Board is by necessary implication liable to be sued in an action for damages but there is no such provision in the Act. The Board is a non-corporate statutory body which cannot sue or be sued and which falls under category no.6 of the six categories of bodies created by statute which are listed in MacLean v Liquor Licence Board of Ontario (1975) 9 O.R, (2d) 597 at pp.606-607. It follows from all this that the Board is a body that cannot sue or be sued. On this basis, the statement of claim should be struck out. It is accordingly struck out.

I do not have to consider whether an alleged breach of natural justice or an alleged ultra vires action which are both public law matters can be used as the basis for a cause of action in a civil claim for damages which appears to have been done here. This matter was not made an issue in these proceedings. I therefore say no more about it.

Are members of the Liquor Control Board personally liable for actions of the Board?

Counsel for the Liquor Control Board in his submissions has asked the Court not to make any decision on the question of whether the members of the Board are personally liable for actions of the Board. The reasons given by counsel for this request are (a) the members of the Board are not parties to the proceedings for judicial review or to the civil claim for damages, (b) he is appearing as counsel in these proceedings for the Board and not for the members of the Board in their personal capacities, and (c) the members of the Board have not had any opportunity to instruct counsel to act for them in their individual capacities as they have not been personally cited as parties in any of these proceedings. For the reasons given by counsel for the Board, I have decided not to come to a decision in these proceedings on the question of whether the members of the Board are personally liable for the actions of the Board.

Is the Liquor Control Board part of Government?

The question of whether the Liquor Control Board is part of Government has arisen because of the argument put forward for the Board that the Board has no separate legal entity to the Government and therefore is not a statutory body able to sue and be sued. Given the conclusion which I have reached that the Board cannot sue or be sued, it is not strictly necessary to go on to deal with the present question. However, because of the significance of the issue and since it is dealt with in the submissions of counsel, I will say something about it.

To determine whether the Liquor Control Board is part of "the government," it is necessary to understand first what is meant by the government. But to understand what is meant by "the government," it is necessary to refer to what is meant by "the Crown" because the modern notion of what is meant by the government is derived from the notion of what is meant by the Crown at common law. This is explained in Liability of the Crown (2000) 3rd ed by Hogg and Monahan at p.11 where it is stated:

"What is meant by ‘the Crown’? The crown as an object is a piece of jewelled headgear under guard in the Tower of London. But it symbolizes the powers of government which were formerly wielded by the weaver of the crown. Although we now have a ‘constitutional monarchy’, in which the role of the Queen (and of her representatives in the Commonwealth countries) has become almost entirely formal, the term ‘the Crown’ has persisted as the name for the executive branch (but not the legislative branch) of government. Executive power is actually exercised by the Prime Minister and the other Ministers who direct the work of the civil servants in the various government departments. This structure is accurately and commonly described as ‘the government’ or ‘the administration’ or ‘the executive’ but lawyers usually use the term ‘the Crown’"

The authorities are also in agreement that the departments of government headed by a Minister are included within the term "the Crown" and are therefore part of the government: Town Investment Ltd v Department of Environment [1977] UKHL 2; [1978] AC 359 per Lord Diplock at p.397; Judicial Review of Administration Action (1995) 5th ed by de Smith, Woolf and Jowell at p.207; Liability of the Crown (2000) 3rd ed by Hogg and Monahan p.11.

There is no doubt that the Liquor Control Board as established under s.3 of the Liquor Act 1971 is not "the Government". I have also come to the view that the Liquor Control Board is not part of the Government. It is not a department or ministry Government. It is simply a statutory body which exists separately from the Government even though its chairman is a Minister and four of its members are administrative heads of ministries of Government. I accept the submission by counsel for the applicant that the fact that three of the members of the Board are appointed by the Minister from the general public also suggest that the Board is a statutory body with a legal existence separate from the Government. In my view, the appropriate question is not whether the Board is part of the Government (for it is not) but whether it is an agent of the Government so that if the Government as principal cannot be sued then it is arguable that the Liquor Control Board as its agent is also immune from liability. If, on the other hand, the Board as agent can be sued, then it is certainly arguable under the provisions of the Government Proceedings Act 1974 that the Government as principal can also be sued. However, I am not required to determine whether the Board is an "agent of the Government" for that question did not really arise, and in any event I have concluded that the Board cannot be sued. What I have had to determine is whether the Board is part of the Government and I have come to the view that it is not.

Is the Liquor Control Board amenable to judicial review; if so, should an order for certiorari be issued?

I have already determined that the Liquor Control Board is a non-corporate statutory body which cannot be sued. That means the Board cannot be sued for damages by civil action which will be a private law proceeding. However, the immunity of the Board from civil suit in a private law proceeding does not mean that the Board is therefore also immune from judicial review which is a public law proceeding. Given the nature of the functions which the Board is empowered under s.3 of the Act to perform, I conclude that the Board is amenable to judicial review. Both counsel in the present case are also in agreement that the Board is amenable to judicial review. In MacLean v Liquor Licence Board of Ontario (supra), the Liquor Licence Board of Ontario which was a non-corporate body that was not liable to be sued in an action for damages, was nonetheless said to be amenable to judicial review.

Given that the Board is amenable to judicial review, the next question is whether an order for certiorari should be issued. On this point, it is important to bear in mind that the remedies for judicial review are discretionary so that even if the grounds for a remedy sought by an applicant have been established, the Court in the exercise of its discretion may still not grant a remedy. In the case of Tiatia v Attorney General [2004] WSSC 25, I said:

"Remedies for judicial review are discretionary. Even if an applicant for judicial review has established the grounds for the remedy he is seeking, the Court in the exercise of its discretion may still not grant that remedy. One reason where the Court may not grant a remedy is where to do so would be futile or serve no purpose. In Principles of Judicial Review (1999) by de Smith, Woolf and Jowell, the learned authors state at p.602:

’One of the most important characteristics of judicial review ‘is that it is a practical procedure which does not readily ‘provide a remedy just because someone has technically ‘succeeded on an application. It will not provide a remedy if ‘it will serve no purpose. Events can overtake proceedings. ‘For example, a licence, the validity of which is challenged in ‘the proceedings, may have expired by the hearing. Similarly ‘an activity under challenge may have ceased before a remedy ‘has been granted. Even a declaration may serve no purpose ‘in those circumstances’

In the New Zealand text of Judicial Review (1991) by GDS Taylor, it is stated at p.59:

‘If a Court considers that granting a remedy would achieve no ‘purpose, it is slow to do so...It may be that since the ‘commencement of a proceeding events have occurred which ‘have rendered the outcome of the case irrelevant’

I would also refer to the case of Leota Leuluaialii Ituau Ale v Afamsaga Fatu Vaili [1995] WSCA 7 (unreported judgment of the Court of Appeal) where the appellant had sought a declaratory order that his disqualification under s.10 of the Electoral Act 1963 from holding his parliamentary seat was invalid. A by-election followed the appellant’s disqualification. Before his appeal was heard by the Court of Appeal, the appellant had won that by-election and was re-elected to Parliament. The Court of Appeal observed that the issue in the appeal had become academic for events had overtaken the appeal. The appeal was accordingly dismissed."

The relevant facts of Tiatia v Attorney General [2004] WSSC 25 were that the applicants filed a motion for declaratory orders to invalidate the appointments of the three third respondents as assistant commissioners of police. By the time of the hearing of the motion, the first named third respondent had been appointed commissioner of police and was therefore no longer an assistant commissioner. One of the grounds on which the motion for declaratory orders was dismissed against the first named third respondent was that even if the applicants were to succeed in establishing their motion, it would be futile and serve no purpose to grant the order sought because the first named third respondent was no longer an assistant commissioner, he had been appointed commissioner of police. Events had overtaken the applicant’s motion for declaratory orders since it was filed.

The situation in this case is that the Board had cancelled the applicant’s licence to sell liquor. The applicant then filed a motion for judicial review seeking, inter alia, an order for certiorari to quash the decision of the Board to cancel its licence. Before the hearing of the applicant’s motion, its licence to sell liquor had been reinstated. In these circumstances, counsel for the Board has submitted that the granting of a quashing order will have no practical effect on the position of the applicant.

As the applicant’s liquor licence has been reinstated since it filed its motion for judicial review, no useful purpose will be served by granting a quashing order by way of certiorari even if the grounds for such remedy can be established. The issue has become academic as events have overtaken the applicant’s motion. The motion is therefore refused in the exercise of the Court’s discretion.

Conclusions

(a) The Liquor Control Board is an entity that cannot be sued and therefore the statement of claim is struck out.

(b) I make no decision on the question of whether the members of the Liquor Control Board can be personally liable for the actions of the Board.

(c) The Liquor Control Board is not part of the Government but a statutory body which exists separately from the Government.
(d) The Liquor Control Board is amenable to judicial review but in the exercise of the Court’s discretion the motion for certiorari is refused.

Counsel to file submissions as to costs in 10 days if they cannot reach agreement.

CHIEF JUSTICE

Solicitors
Toa Law for Applicant
Attorney General’s Office, Apia for Respondent